No Kidding

The University of Washington billed it as a debate among distinguished law faculty over whether the new federal health-care law is constitutional.

But while the four panelists at a packed event Tuesday may have differed on some of the finer points, they all agreed on the big question: They said the new law passes constitutional muster and that various lawsuits arguing the opposite — including the one joined last week by state Attorney General Rob McKenna — have little merit or chance of success.

Even John McKay, the former Republican U.S. attorney for Western Washington (who was forced out in 2006 under contentious circumstances) said that while he sympathized with some of the political issues in play, he thought the lawsuits lacked merit. In fact, he questioned the timing and thrust of the cases: “One way to say it is, that this has to be seen as a political exercise,” he said.

Moderator Hugh Spitzer noted the lack of a vigorous dissenting voice.

“I will say that we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional,” he said. “But there are relatively few of them, and they are in great demand.”

Spitzer, an expert in state constitutional law and a UW affiliate professor, said afterward that organizers even considered setting up some kind of video conference to provide the counter perspective. But in the end, he said, the lack of professors taking that position spoke to the merits of the arguments. He said organizers did not invite McKenna because they wanted to stick with academicians.

Maybe they could get someone on the Seattle Times editorial board instead.

UPDATE (Goldy): Well, I had been working on a post, but since Lee beat me to it, I’ll just tack on a couple comments here.

First of all, I watched the entire forum live via the TVW feed, and while it was rather striking how unanimous the participants were on the lack of merit of the lawsuit, good law professors that they are, they did make every effort to explore all the angles and underline which legal points on which the attorneys general have the best chance of succeeding. It’s just that nobody thought their best chance was much of a chance at all.

Which brings me to the Times article, and its focus on the lack of dissent at the forum. I’m not sure why reporter Nick Perry should have been so surprised, as the lawsuit has been almost universally condemned by legal scholars as meritless. Unless, of course, Perry’s starting point was his own paper’s editorial page, which vigorously insists that McKenna has a “good case.”

The problem is, unlike the legal scholars participating in this forum, the Times’ editors are about as familiar with constitutional law as they are with the inside of their own colons. Indeed, considerable less so.

So note to journalists everywhere: there aren’t always two sides to every story. Sometimes there are multiple sides. And sometimes, one side simply has its head up its ass.

UPDATE, UPDATE (Goldy): After reading the initial bit of trolling in the comment thread, attempting to discredit the forum because moderator Hugh Spitzer (gasp) contributes to Democrats, I’ve decided to embed the TVW video below. So now folks in the thread have no excuse for being ignorant. (Or at least, no more of an excuse than they normally do.)

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“Even John McKay … (who was forced out in 2006 under contentious circumstances)”

No, let’s be specific, McKay was fired for refusing to prosecute innocent people for an “election fraud” that never happened — which would be both illegal and unethical, and no reputable attorney would ever agree to such a thing.

That didn’t stop an unethical Republican hack filling a U.S. Attorney job in Milwaukee from sending an innocent Wisconsin election worker to prison for an “election fraud” that never happened — who was ultimately released by a federal court that issued one of the angriest judicial decisions in American history.

You see, when Republicans want to use the courts for political grandstanding, they have no qualms about sending innocent people to jail.

And these bastards have the nerve to assert the Democrats’ health reform bill takes away our freedom? Good God — how fantastically stupid do people have to be to swallow Republican bullshit?

2 Constitutional awareness has a political bias–those who understand and appreciate constitutional law tend to lean left. Those who think the Constitution means whatever they want it to mean tend to topple heavily to the right.

BTW, Spitzer is no idealogue, not even close. He is a careful intellectual, which is an extinct species on the right.

@4 I wouldn’t describe constitutional awareness as a “bias” or “leaning left,” even though constitutional ignorance is a distinctly rightwing phenomenon. Refuting someone who asserts the earth is flat is apolitical, and so is this.

Why not have some credibility and have a moderator with no obvious political bias like Mr. Spitzer? Without an independent moderator and a balanced panel, the end product is of little value, even as an intellectual exercise.

1n the 1770s and 80s, a revolution was fought … led by ______s who opposed rule by inherited privilege, opposed imposition of any religion, and believed in equal opportunity for everyine, including the right to own slaves.

LawyersBias, the point that you’re desperately trying to avoid is that there exists no reputable* legal scholar who thinks the McKenna/Florida/wingnut lawsuit has the slightest merit on Constitutional grounds.

(* reputable is defined as graduate of any law school other than Regent)

7 You just don’t get it, do you? Like Goldy wrote, “there aren’t always two sides to every story.” There aren’t two sides to this story, and so “a balanced panel” is not something that can be achieved.

Do you think you have more familiarity with, and a greater understanding of, the Constitution than does Hugh Spitzer? How many constitutional law courses have you taught?

9 Liberty University, Falwell’s academic tribute to himself, also has a law school, and I believe the guy who founded Domino’s Pizza has started one (I think it’s called Ave Maria School of Law). Those two schools would certainly join Regence in the category of not reputable.

Did you bother watching the forum before impugning Prof. Spitzer? No? Well I just updated the post to embed the TVW video, so now you have no excuse. Watch it, and then explain how biased and unbalanced the panel is.

The fact is, there are virtually no legal scholars arguing the attorneys general side because there are virtually no legal scholars who think they have a pot to piss in. And none of your trolling changes that.

“The 1787 delegates practiced a wide range of high and middle-status occupations, and many pursued more than one career simultaneously. They did not differ dramatically from the Loyalists, except they were generally younger and less senior in their professions.[8] Thirty-five were lawyers or had benefited from legal education, though not all of them relied on the profession for a livelihood. Some had also become judges.[9]”

LawyersBias @ # 7 demonstrates a common example of wingnut circular reasoning: “Anyone who doesn’t support us is biased against us, anyone who is biased against us shouldn’t be in a position where their opinion might be important”. They trot this out against anyone in the media, or in this case in an intellectual discussion panel, whenever it suits their purpose. It is at best an ad hominum attempt to deflect discussion away from the merits by attacking the individual.

With respect to those trained in the law, it is patently ridiculous. Lawyers are trained to be able to see, discuss, and argue both sides of an issue – moderating a discussion among academics in a neutral manner is child’s play for them.

I don’t know anyone who would call John McKay unqualified, or unlearned, or lacking in relevant and rich Constitutional knowledge. Heck, I didn’t always agree with his stands as US attorney, but he knows his stuff cold.

And GBS, they were radicals in terms of overall Enlightenment political philosophy, but they were also land-owning, well-educated, by and large well-to-do “radicals.” When the opportunities arose to protect their own privileges, they seized them.

Liberty University, Falwell’s academic tribute to himself, also has a law school, and I believe the guy who founded Domino’s Pizza has started one (I think it’s called Ave Maria School of Law). Those two schools would certainly join Regence in the category of not reputable.

@18 The only point he’s making here is that he can’t imagine bias not being brought to the table. In other words, the writer is the one here who is likely incapable of dropping any bias if he were in the role of moderator and he’s just projecting that onto Spitzer. It always seems to boil down to projection. So Psych 101.

And GBS, they were radicals in terms of overall Enlightenment political philosophy, but they were also land-owning, well-educated, by and large well-to-do “radicals.” When the opportunities arose to protect their own privileges, they seized them.

Mmmmmmm . . . no, I don’t think you’re right. Better see my answer at 15. FREE RADICALS! They were definetly chemistry dudes way ahead of their time in mechanics, too. I believe they were quantum mechanics.

Daddy Love, I believe the FREE RADICALS of the 1770’s were also the first to discover the flaw in Einstein’s therory of relativity because when you carry out the therory to it’s final conclusion the answer is r/0 = infinity.

Which of course, as we all know is impossible, as demonstrated at the “event horizon” of any black hole.

Moderator at any gathering is the person who facilitates the event. He/She is responsible for accomplish the task in the predetermined amount of time. In a sense they become the parliamentarian, ruling on what is in and out of order for the event. Good moderators don’t let personal bias effect doing their job.

Now that the video link has been posted can you trolls locate any specific instant where obvious bias was evident?

It sounds like it was a fair and open discussion, that they explored different ways the argument, pro and con, could be made.

Anyone who has done forensics knows its possible to objectively debate from a side with which they don’t personally agree. You have to emotionally detach yourself from the issue. I didn’t see any evidence that they were emotionally attached to this issue.

The conclusion they apparently reached was that there is very little legal precedent for the challenge to be successful.

The reason why constitutional scholars can debate a topic such as this one, without emotional attachment, is in part due to the rigors of a legal education, which requires a law student to read case law and extract from them the controlling legal principle, seperated from the individuals, emotions, and potential politics of a particular case, as well as the unessential dicta contained within the written opinions.

Or as John Houseman uttered when playing the role of Prof. Kingsfield in The Paper Chase (1973):

“You come in here with a skull full of mush, and you leave thinking like a lawyer.”

Of course, McKay is also the product of a legal education which is just as valid as those on the panel. Which is why it is so surprising to see him join the lawsuit which is so clearly lacking in merit – unless, as one on the panel noted, the Supreme Court is willing to overturn a long string of established constitutional law and precedent since the 1930’s.

rhp @ 33 I think you mean McKenna, not McKay. McKay has integrity, but McKenna, not so much. Given the quality of McKenna’s legal education, I have to believe he knows what a longshot this suit is. But, who knows, given all the Federalist Society connections between a few of the reactionary Supreme Court Justices and conservative lawyers throughout the country, maybe word from above has been delivered encouraging the case.

35 Believing that the Second Amendment is not an individual right is a widely held belief among constitutional scholars. The amendment is hopelessly confusing because of its sentence structure and the reference to militias, and its historical context does not provide much guidance to its meaning. Only in the past year or so did the Supreme Court finally take up the issue of whether the amendment identifies an individual right; the only prior Supreme Court decision addressing the issue, albeit obliquely, suggested there was no individual right. Our very conservative Supreme Court held otherwise. So, Hugh Spitzer’s thoughts on this issue are well within the mainstream and hardly impugn his integrity. Thanks for playing, though.

Believing that the Second Amendment is not an individual right is a widely held belief among constitutional scholars. The amendment is hopelessly confusing because of its sentence structure and the reference to militias, and its historical context does not provide much guidance to its meaning.

I’ve been wondering about this very issue.

If a city or state or whatever jurisdiction were to define what it considers to be “a well-regulated militia” as something akin to the National Guard or some other sort of organization, couldn’t it then go on from there to an application of the 2nd Amendment in a manner more appropriate to the 21st century?

Also, I can see interpreting “people” in the other phrase of the Amendment (the part that the NRA crazies don’t ignore) as referring specifically to the members of that well-regulated militia.

38 I think your queries are well within the range of how the amendment can be properly interpreted. The framers were not at their grammatical best when they patched the Second Amendment together. From a practical point of view, when the Supreme Court held that the amendment did provide for an individual right to bear arms, I was relieved. Not that I think the Court made the right decision, but because I thought firmly establishing such a right might reduce the wingnut noise level. No such luck. It’s gotten louder. Go figure.

The University of Washington can do whatever they want and have whoever they desire, although as a Public University, the ought to try harder to balance things. They should also disclose political affiliations and let the viewers decide. So should have the Times. It’s easy info to get. It doesn’t matter how you think Spitzer performed or the others. It’s an appearance of fairness and disclosure issue, that’s all. Have fun.

I’ll buy that argument only when Fox News drops it’s “fair and Balanced” hogwash, and instead discloses with every broadcast that it is a wholly-owned subsidiary of the Republican Party (or is it the other way around?).

42 Ideas speak for themselves, regardless of political affiliations. Judge an opinion by the quality of the supporting argument, not by who espouses it. Of course, you folks don’t get that. Judging for yourselves is beyond you. You believe and do that which Rush, Beck, et al tell you to believe and do. That debate, as a matter of fact, was balanced with regard to the range of supportable opinions. There is no need to add an opposing voice that is outside the realm of reason just to appease wingnuttia.

Here is an interesting intellectual exercise — let’s call it consistent principles. Suppose that McKenna’s lawsuit was correct, and the constitution was interpreted the way necessary for McKenna to succeed.

How many other federal programs and federal tax law provisions would also have to be struck down as unconstitutional?

Mr. Pope You would have to go thru each program and tax law provision on a case-by-case basis. But keep in mind, unConstitutional laws can certainly be passed and implemented if no one objects. So if Mr. McKenna is correct, someone would have to file an action on other programs & laws. No lawsuits, nothing would be struck down. But it is an interesting exercise, I agree.

rhp @ 45– That’s kind of silly. Fox is a privately-owned company not owned by the Republican Party. In addition, the University of Washington is a PUBLIC University funded with taxpayer dollars. Big difference between private and publicly funded entities, don’t you think.

i love how all you guys “discuss” issues without talking about them at all.

you have no respect of your enemy, goldy. no respect at all. and thats why i can’t take you seriously.

its easy to pick on the republicans that troll your site because they’re retarded. but you couldn’t hold a candle to a true classical liberal free market type. he’d floor your ass because you don’t even know what he looks like.

LB @ 52 The University of Washington is an academic institution, the purpose of which is to promote the pursuit of truth. That purpose would be undermined by putting some intellectual lightweight on a panel merely to appease a political segment of the country which, simply, has a constitutionally frivolous position on the issue of the individual mandate in the new healthcare legislation. Not one of you took on Goldy’s challenge concerning how you might reconcile your lobbying for privatization of Social Security with your screaming about the mandate/tax of the healthcare legislation. That is not surprising. Check it out, not a single one of you respond because FoxNews hasn’t yet figured out what to tell you:http://horsesass.org/?p=25827

Putting idiots on panels to provide the idiot caucus with a sense of “balance” is not something a publicly-funded institution should do.

They helped take away the ability of a small minority of people to define who other people in a society are and what role those people may play in society. While this is not a right that is defined in the constitution, that small minority of people do believe that this is their right and seem willing to stop at nothing to defend their imagined right.

As someone that comes from a long, long, line of coal miners (and other assorted trash) I’d like to take this opportunity to tell members of that small minority of people to go fuck themselves.

The University of Washington is an academic institution, the purpose of which is to promote the pursuit of truth.

That’s funny proud goatist… When the arschloch was attacking Puddy for having a son enrolled in UW he continually attacked Puddy for sending Puddy’s son to a liberal university… You never corrected ylb arschloch… EVER… So…

The University of Washington is an way liberally leaning academic institution, the purpose of which is to promote the liberal bent on truth.

There you go again… No one is jock strapping those fools. Other militia have said they are not Christians.

Butt somehow facts seem to pass through one eye and out the ears spending a femtosecond inside that neanderthal shaped granite cranium orifice. In fact, when you stand sideways, peeps can see the through the granite.

You send your kids to take classes from Prof Darryl who in the past you’ve lumped in with all the ugly names you call people here. Your kids don’t go to the military to fight the terraists that you and your stupid peeps are paranoid about. You get your health care from a socialist-inspired, Seattle-based Health plan where the docs get a plan paycheck instead of “letting the market decide”.

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